[1] Whether the disposition of imposing farmland preservation charges on the business and property of agricultural cooperatives or the National Agricultural Cooperative Federation violates the important part of the laws and regulations (affirmative)

[2] The case holding that in a case where Party A, who obtained permission to divert farmland for the purpose of constructing a new agricultural warehouse, etc., imposed farmland preservation charges on Party A, the defect of disposition is objectively obvious

[1] Legislative intent of the former Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 2011; hereinafter “Agricultural Cooperatives Act”), the provisions of Article 8 of the Agricultural Cooperatives Act, the contents and form of the facilities prescribed in the subparagraphs of Article 52 [Attachment 2] of the former Enforcement Decree of the Farmland Act (amended by Presidential Decree No. 24172, Nov. 12, 2012; hereinafter “Enforcement Decree of the Farmland Act”), the contents and form of the facilities prescribed in the subparagraphs of [Attachment 2] of Article 52 of the former Enforcement Decree of the Farmland Act and the former Farmland Act (amended by Act No. 11171, Jan. 17, 2012; hereinafter “ Farmland Act”) and its Enforcement Decree include no special provision such as imposing or restricting the scope of farmland preservation charges in relation to agricultural cooperatives or the National Agricultural Cooperatives Federation’s business affairs or property, or the provisions of Article 8 of the Agricultural Cooperatives Federation’s imposition or exemption of charges on farmland preservation, which do not conflict with the provisions of the Farmland Act or the National Federation.

[2] In a case where Party A imposed farmland preservation charges on Party A, who obtained permission to divert farmland for the purpose of constructing a new agricultural warehouse, etc., the case holding that Party A’s association constitutes “cooperatives, etc.” under Article 8 of the former Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 2011; hereinafter “Agricultural Cooperatives Act”), and that Party A’s association, a local agricultural cooperative, obtained permission to divert farmland for the purpose of constructing a new agricultural warehouse, etc., constitutes “business and property” of a cooperative subject to exemption from charges, and that Party A’s association is objectively obvious of the defect in the disposition, in light of the legal principles that Article 8 of the Agricultural Cooperatives Act, which provides for exemption from charges, takes precedence over other Acts, and the language and text of Article 8 of the Agricultural Cooperatives Act, provides for exemption from charges, and that the provisions of the Farmland Act on imposition of farmland preservation charges cannot be applied in preference to the provisions of the Agricultural Cooperatives Act as to exemption from charges at the time of the disposition

[1] Articles 1, 2, and 8 of the former Agricultural Cooperatives Act (Amended by Act No. 10522, Mar. 31, 2011); Articles 38(1) and (5)3 of the former Farmland Act (Amended by Act No. 11171, Jan. 17, 2012); Article 52 [Attachment 2] of the former Enforcement Decree of the Farmland Act (Amended by Presidential Decree No. 24172, Nov. 12, 2012); Article 1, 2, and 8 of the former Agricultural Cooperatives Act (Amended by Act No. 10522, Mar. 31, 201); Article 38(1) and (5)3 of the former Farmland Act (Amended by Act No. 11171, Jan. 17, 2012); Article 52 of the former Enforcement Decree of the Farmland Act (Amended by Presidential Decree No. 238(1)4, Dec. 13, 2017>

[1] Supreme Court Decision 2010Du16714 Decided May 24, 2012 (Gong2012Ha, 1134)

Myeoncheon Agricultural Cooperatives (Attorney Han-do et al., Counsel for defendant-appellant)

Korea

Korea Rural Community Corporation (Law Firm Tae, Attorneys Park Jong-ju et al., Counsel for the plaintiff-appellant)

Daejeon District Court Decision 2013Na100864 Decided July 9, 2013

The appeal is dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

The grounds of appeal are examined.

1. In order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient. The defect must be objectively obvious as it seriously violates the important part of the law. When determining whether the defect is significant and obvious, the purpose, meaning, and function of the law should be examined from a teleological perspective as well as reasonable consideration on the specificity of the specific case itself (see Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995). In a case where an administrative agency takes an administrative disposition with respect to a certain legal relation or fact by applying a provision of an Act, the legal doctrine is clearly stated that the application of the provision of the law is not applicable to the legal relation or fact, or the meaning of the affirmative or passive requirement of the provision of the law is apparent, but if the administrative agency erroneously interpreted the meaning without a reasonable ground failed to satisfy the affirmative or passive requirement of the disposition, or if the pertinent disposition was conducted without satisfying the passive requirement, the defect can be deemed objectively apparent (see Supreme Court Decision 2011Du374666, Mar. 20, 20,

2. The former Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 2011; Act No. 1135, Mar. 2, 2012; hereinafter “Agricultural Cooperatives Act”) was established for the purpose of improving the economic, social, and cultural status of farmers based on the independent cooperative organization of farmers, enhancing the quality of life of farmers, contributing to the balanced development of the national economy, and contributing to the improvement of the national economy (see Article 1). Article 2 of the former Agricultural Cooperatives Act provides that a cooperative refers to local associations (referring to local agricultural cooperatives and local livestock cooperatives established under the above Act) and products cooperatives; Article 8 provides that the National Agricultural Cooperatives Federation refers to the National Agricultural Cooperatives Federation established under the Agricultural Cooperatives Act; and Article 8 provides that a cooperative and the National Federation shall be exempted from charges, other than taxes of the State and local governments.

Meanwhile, Article 38(1) of the former Farmland Act (amended by Act No. 11171, Jan. 17, 2012; hereinafter “ Farmland Act”) provides that a person who is granted permission to divert farmland shall be subject to the imposition of farmland preservation charges. Article 38(5) provides that “Where farmland is diverted to install facilities under any subparagraph of Article 35(1) or other facilities prescribed by Presidential Decree” in subparagraph 3, and Article 52 of the former Enforcement Decree of the Farmland Act (amended by Presidential Decree No. 24172, Nov. 12, 2012; hereinafter “Enforcement Decree of the Farmland Act”) provides that “The reduction or exemption and exemption of farmland preservation charges under Article 38(5) of the Farmland Act (amended by Act No. 11171, Jan. 17, 2012) shall be subject to the imposition of farmland preservation charges.” Article 38(5) provides that “[Attachment 20] subparag. 20, 202>

In light of the legislative purport of the Agricultural Cooperatives Act, the provisions of Article 8 of the Agricultural Cooperatives Act, the contents and form of the facilities prescribed by the reduction of farmland preservation charges in each subparagraph of Article 52 [Attachment Table 2] of the Enforcement Decree of the Farmland Act, and special provisions such as imposition of farmland preservation charges or restriction on the scope thereof in relation to the affairs and property of cooperatives or the National Federation, or the provisions of Article 8 of the Agricultural Cooperatives Act are not provided for in the Enforcement Decree of the Farmland Act, and the provisions of Article 8 of the Agricultural Cooperatives Act and the Farmland Act and the Enforcement Decree thereof do not conflict with each other, it shall not be construed that the facilities owned by cooperatives or the National Federation are included in the subject of imposition of farmland preservation charges as a matter of course solely on the grounds that they are not listed as facilities subject to reduction or exemption under each subparagraph of [Attachment Table 2] of Article 52 of the Enforcement Decree of the Farmland Act, and Article 8 of the Agricultural Cooperatives Act, the special law on exemption from charges, which is a special law on farmland, shall not be interpreted to impose charges on the National Federation or the National Federation's.

The court below held that each disposition of this case, which imposed farmland preservation charges on the plaintiff's business and property as a local agricultural cooperative by applying the farmland law, is unlawful, and it constitutes a violation of an important part of the law and thus, its defect is serious. In so doing, contrary to what is alleged in the ground of appeal, the court below did not err in the misapprehension of the legal principles as to the

3. A. Examining the reasoning of the judgment below and the circumstances revealed through records, etc., including the duly admitted evidence, in light of the legal principles as seen earlier, the illegality of each of the dispositions of this case is recognized as follows, and the grounds alleged in the grounds for appeal by the Defendant alone are difficult to view otherwise.

(1) It is clear that agricultural cooperatives and property incorporated under the Agricultural Cooperatives Act are exempt from charges other than taxes, based on the content of the relevant provisions of the Agricultural Cooperatives Act as seen earlier.

In addition, it is clear that the Plaintiff’s local agricultural cooperatives established under the Agricultural Cooperatives Act fall under “cooperatives, etc.” as stipulated in Article 8 of the Agricultural Cooperatives Act, and the meaning of “business and property”, which are the requirements for exemption from charges under the language and text of Article 8 of the Agricultural Cooperatives Act, is clear, and it can be sufficiently interpreted that the Plaintiff’s permission for diversion of farmland for each land in the first instance judgment as cited by the lower court for the purpose of newly constructing a warehouse, etc. for agricultural use, constitutes “business and property” subject to exemption from charges, and there

(2) Before each of the dispositions in this case is already taken, the Supreme Court declared that Article 8 of the Agricultural Cooperatives Act, which provides for exemption from charges in the Supreme Court Decision 94Nu2985 Decided February 3, 1995, is a special law on the imposition of charges for causing traffic congestion (wholly amended by Act No. 6642 of Jan. 26, 2002) and, unless there are special provisions on priority in application of the Act, Article 8 of the Agricultural Cooperatives Act, which excludes exemption from the imposition of charges, no one kind of charges shall be imposed on the operations and assets of the cooperative under Article 8 of the Agricultural Cooperatives Act. In addition, the Supreme Court Decision 95Nu8249 Decided February 9, 196 confirmed that the above legal principles are applied to the relationship with the former Restitution of Development Gains Act on the imposition of charges (wholly amended by Act No. 4563 of Jun. 11, 193). Thus, the above legal principles are clearly stated in Article 8 of the Agricultural Cooperatives Act.

However, there are no special provisions such as imposition of charges or restriction on the scope of the charges on the business and property of a cooperative, or Article 8 of the Agricultural Cooperatives Act does not exclude the application of the farmland preservation charges. In addition, there are no reasonable grounds to incorporate the farmland preservation charges into charges under Article 8 of the Agricultural Cooperatives Act, or the farmland preservation charges are not subject to charges under the previous laws and regulations, unlike the previous laws and regulations on the imposition of charges for causing traffic congestion or the development charges.

Therefore, according to the above legal principles and the language and text of Article 8 of the Agricultural Cooperatives Act, which provides for exemption from charges, which prevails as a special law, it seems clear in the legal principles that the defendant, at the time of each disposition of this case, is not able to apply the provisions of the farmland law on the imposition of farmland preservation charges in preference to the provisions of the Agricultural Cooperatives Act on exemption from charges, and it is reasonable to view that there was no reasonable room for dispute over the interpretation of the Agricultural Cooperatives Act

(3) Nevertheless, without reasonable grounds, the Defendant’s erroneous interpretation of the meaning and application of the requirements for exemption from charges under Article 8 of the Agricultural Cooperatives Act, and as a result, it can be deemed that the Defendant rendered each of the instant dispositions imposing farmland preservation charges by applying farmland-related Acts and subordinate statutes in a state where the requirements for imposition of farmland preservation charges are not satisfied with respect to the Plaintiff’s business and property, which is a local agricultural cooperative

B. Thus, the court below's determination that each of the dispositions of this case is obvious is just as it has purport, and there is no error of law by misapprehending the legal principles as to the apparentness of defects, as otherwise alleged in the grounds of

4. Therefore, the appeal shall be dismissed, and the costs of appeal shall be borne as per Disposition with the assent of all participating Justices, including the costs of participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim So-young (Presiding Justice)